For the first time in 2021, Senate Republicans filibustered a bill: the measure to create a commission to investigate the Jan. 6 attack on the U.S. Capitol. It was a bipartisan bill to establish a bipartisan commission ― in theory, the kind of thing that might sail through a Senate that preaches the virtue of bipartisanship.
But the filibuster, a Senate rule requiring 60 votes to advance a bill, allowed Republicans to kill the commission on Friday even though 54 senators voted to move forward and 35 senators voted in opposition. (Several senators missed the vote entirely.)
This proves once and for all that the filibuster doesn’t encourage bipartisan compromise. It impedes it.
This should be a revelatory moment for Democratic Sens. Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.), who oppose changing the Senate’s filibuster based on a specious argument that the filibuster is a necessary tool to foment bipartisan compromise.
“Debate on bills should be a bipartisan process that takes into account the views of all Americans, not just those of one political party,” Sinema wrote in an email to constituents in February.
“There is no circumstance in which I will vote to eliminate or weaken the filibuster,” Manchin wrote in The Washington Post in April. “The time has come to end these political games, and to usher a new era of bipartisanship where we find common ground on the major policy debates facing our nation.”
Manchin argued that past changes to the filibuster rules enacted by each party made gridlock more severe. (Despite his claims of consistent opposition to changing filibuster rules, Manchin co-sponsored and voted in favor of a talking filibuster rules change in 2011 that ultimately failed.)
The idea that the filibuster encourages bipartisan compromise, however, is false. The filibuster of the bipartisan Jan. 6 commission proves it.
The commission bill was written in a bipartisan fashion by Reps. Bennie Thompson (D-Miss.) and John Katko (R-N.Y.) in the House. The commission would be split evenly between members of both parties and all actions, including the hiring of staff, would need to be approved by commission members of both parties ― the same structure as the bipartisan 9/11 Commission.
Thirty-five House Republicans and six Republican senators voted to move forward to debate on a commission. But none of this bipartisanship matters because the filibuster allows a partisan minority to quash bipartisan compromise.
Manchin shouldn’t need to learn this lesson again. His bipartisan gun control bill with Sen. Pat Toomey (R-Pa.) failed to pass despite having support from 55 senators, including four Republicans. (The vote was technically 54-46, but former Sen. Harry Reid (Nev.) voted against as part of a procedural maneuver to be able to bring the bill back up again.) Many more bipartisan bills, including the Dream Act to provide legal status to undocumented young people who came to the U.S. as kids, fell before the filibuster in the past.
The idea, espoused by Manchin, that hyperpartisan gamesmanship is a result of eliminating the filibuster is upside-down. Hyperpartisan gamesmanship preceded former Senate Democratic Leader Reid’s elimination of the filibuster in 2013 for lower court and executive branch nominees in the form of the abuse of the filibuster.
The filibuster does not just impede bipartisan compromise. It also feeds partisanship by allowing lawmakers to signal support for legislation even if they don’t actually want to work to pass it. This is true for partisan bills, which senators can voice support for to please issue-based voters, while avoiding having to reveal how they would really vote on the matter since most bills that can’t get to 60 votes will never make it to the Senate floor.
Similarly, the filibuster increases partisanship by decreasing the likelihood of minority party lawmakers seeking to negotiate on behalf of their constituents for concessions in return for their vote.
As seen with the infrastructure negotiations, the credible threat of passing Democrats’ priorities without Republican input through reconciliation ― a process that allows some bills to pass with only 50 votes ― is encouraging some negotiation and compromise.
The Republican filibuster of the Jan. 6 commission is also an example of the filibuster increasing partisanship. Republicans openly state they oppose the bill because an investigation into the riot incited by ex-President Donald Trump would make Republicans look bad ahead of the 2022 midterm elections. And a bipartisan investigation approved by members of both parties would be even worse as it complicates their forthcoming message that a partisan investigation into the Capitol attack led by Democrats amounts to canceling Trump and the 74 million people who voted for him.
Manchin said that he was deeply moved by the Capitol attack to find ways to bridge partisan divides and work with the other side to pass legislation. This is the reason he claims to support the current filibuster rules unequivocally. He and Sinema begged Republicans to support the Jan. 6 commission bill. Thursday’s vote showed that there are Democrats and Republicans looking to work across the aisle to pass legislation. They even have a majority of the votes to do so.
The filibuster is the only thing standing in the way.